The United States Supreme Court recently granted certiorari to the first environmental case it will review during the 2012-2013 term. The case, Arkansas Game & Fish Commission v. United States, raises the question of whether flooding caused by the Army Corps of Engineers temporary increase in releases from an upstream dam constitutes a taking under the Fifth Amendment or is a potential common law tort. The Court will examine whether physical intrusions onto private property must be permanent in order to be a taking and whether the government's intent plays a role in the analysis under the Takings Clause.

The case arises from damage to oak trees in a wildlife refuge that the Arkansas Game and Fish Commission alleges occurred due to the Corps of Engineers temporary deviations from the Clearwater Dam's 1953 water management plan. These deviations took place between 1993 and 2000. The Arkansas Game and Fish Commission alleged that the deviations caused increased flooding which damaged the root systems of the oak trees and killed many of them.

The United States Court of Federal Claims found that the government had engaged in an unconstitutional taking and awarded $5 million in damages to the Game and Fish Commission.

In a split decision, the United States Court of Appeals for the Federal Circuit reversed the decision of the Court of Claims. The Federal Circuit ruled that the Corps of Engineers' increase in upstream releases could not constitute a taking because the deviation policy was only temporary. The court reasoned that in order to be considered a taking, flooding would have to be the result of a permanent change in the Corps of Engineers' water management plan. The court found that, at most, the flooding created possible tort liability. In dissent, Judge Newman observed that the flooding led to permanent damage to the timber and the property in the wildlife refuge and reasoned that such permanent loss constitutes a taking under the Fifth Amendment of the Constitution.

Arkansas Game and Fish Commission's petition for certiorari was granted by the Supreme Court in April of this year, and the case is set to be argued in the Court's 2012-2013 term.

American College of Environmental Lawyers, The ACOEL, is a professionalassociation of lawyers distinguished by experience and high standards in the practice of environmental law, ethics, and the development of environmental law.